Michael Gaynor
Ted Cruz is a US citizen, but not a "natural born" US citizen
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By Michael Gaynor
January 22, 2016

Whether or not the Constitution should make "natural born" citizenship derivable from either father or mother, it has not been amended to do so and Congress is not empowered to amend the presidential qualifications by itself.

Raising or lowering the minimum age for president requires a constitutional amendment, not a mere act of Congress.

Likewise, the definition of "natural born Citizen" as understood when the Constitution was enacted should be respected until the Constitution is amended and not disregarded or "redefined" by Congress and/or the courts.

In 1868 the Fourteenth Amendment was adopted. It provided in part that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Plainly, that provision encompassed natural born citizens and naturalized citizens.

It did not define "natural born Citizen" as used in the Constitution as a presidential qualification.

Before May 24, 1934, United States citizenship could be transmitted to children born abroad by United States citizen only by a father, and only if the father "resided" in the United States prior to his child's birth. On that date, United States citizen mothers prospectively obtained equal status with respect to transmitting United States citizenship, but children born before May 24, 1934 to a United States citizen mother and an alien father did not acquire United States citizenship. See Henry L. Chang's "U.S. Citizenship Acquired by Birth Abroad" (http://americanlaw.com/citabrd.html).

There really is "no question" that Ted Cruz acquired United States citizenship at birth through his mother. His Canadian birth certificate, available at http://www.dallasnews.com/news/politics/headlines/20130818-born-in-canada-ted-cruz-became-a-citizen-of-that-country-as-well-as-u.s..ece, shows that his mother was born in Wilmington, Delaware.

But it does not follow that Cruz is a "natural born" United States citizen.

In 2013, Todd Gillman of the Dallas Morning News reported that at birth Cruz became "an instant U.S. citizen" and a Canadian citizen under Canadian law.

Gillman noted: "Unless the Texas Republican senator formally renounces that citizenship, he will remain a citizen of both countries, legal experts say."

Cruz chose to renounce his Canadian citizenship.

On March 11, 2015, former Solicitor Generals Neil Katyal and Paul Clement co-authored a short article entitled "On the Meaning of 'Natural Born Citizen'" for the Harvard Law Review (http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/) addressing the issue of Cruz's presidential eligibility.

The professed purpose of their article was to rebut "spurious arguments that a U.S. citizen at birth is somehow not constitutionally eligible to serve as President simply because he was delivered at a hospital abroad."

In specifically declaring Cruz constitutional eligible to be President, they stated:

"...at least one potential candidate, Senator Ted Cruz, was born in a Canadian hospital to a U.S. citizen mother. Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a 'natural born Citizen' within the meaning of the Constitution. Indeed, because his father had also been resident in the United States, Senator Cruz would have been a 'natural born Citizen' even under the Naturalization Act of 1790."

That's wrong on both "happenstance" and the 1790 Naturalization Act enabling non-United States citizen fathers transmitting United States citizenship (regardless of residence).

Happenstance?

Happenstance is "a circumstance especially that is due to chance" (http://www.merriam-webster.com/dictionary/happenstance).

Cruz's Canadian birth was the result of his parents' choice to move to Canada (and Cruz and his mother stayed in Canada after his father abandoned them for life in Texas).

Wikipedia (https://en.wikipedia.org/wiki/Ted_Cruz):

"Ted Cruz was born on December 22, 1970, at Foothills Provincial General Hospitalin Calgary, Alberta,Canada, to parents Eleanor Elizabeth (Darragh) Wilson and Rafael Bienvenido Cruz. At the time of his birth, Cruz's parents had lived in Calgary for three years and were working in the oil business as owners of a seismic-data processing firm for oil drilling.... The family lived in Calgary's St. Andrews Heights neighborhood and later the affluent Elbow Park neighborhood until his father suddenly abandoned the family and moved to Texas in 1974. Cruz and his mother moved into a townhouse complex in the southeast suburbs of Calgary when later in 1974 Cruz's father, who had joined a Baptist Bible study, reconciled with Cruz's mother and the family relocated to Houston."

Katyal and Clement based their "no question" conclusion in part on a pertinent constitutional commentary by Supreme Court Justice Joseph Story.

They wrote:

"As recounted by Justice Joseph Story in his famous Commentaries on the Constitution, the purpose of the natural born Citizen clause was thus to 'cut[] off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose[] a barrier against those corrupt interferences of foreign governments in executive elections.'"

To be sure, that is true.

But Katyal and Clement assured all as follows:

"...the relevant materials clearly indicate that a 'natural born Citizen' means a citizen from birth with no need to go through naturalization proceedings. The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law and enactments of the First Congress. Both confirm that the original meaning of the phrase'natural born Citizen' includes persons born abroad who are citizens from birth based on the citizenship of a parent."

That's not so.

In 1790 the First Congress provided that "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . ."

Citizenship of a baby was transmittable by the baby's father, but not by the mother, and Cruz's father did not become a United States citizen until long after Cruz was born.

Kaytal and Clement stated: "The Naturalization Act of 1790 expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the United States at some point. But Congress eliminated that differential treatment of citizen mothers and fathers before any of the potential candidates in the current presidential election were born. Thus, in the relevant time period, and subject to certain residency requirements, children born abroad of a citizen parent were citizens from the moment of birth, and thus are 'natural born Citizens.'"

That's not true.

Whether or not the Constitution should make "natural born" citizenship for presidential qualification purposes derivable from either father or mother, it has not been amended to do so and Congress is not empowered to amend the presidential qualifications by itself.

An originalist like Cruz should not be trying to circumvent the Constitution.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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